Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants

Fazal Khan, University of Georgia School of Law

Abstract

The article, Paging King Solomon: Towards Allowing Organ Donation from Anencephalic Infants, argues that organ donation from anencephalic infants is ethically and legally justifiable. Anencephaly is a medical condition characterized by a lack of brain development above the brainstem, so such children often lack a cerebrum, cerebellum and a skull. With an intact brainstem, these children can maintain heart and lung function. Without higher brain functioning though, these children are not capable of human consciousness and they typically have very short life spans measured in days or weeks. The way in which an anencephalic infant dies typically destroys the suitability of the infant’s organs for transplantation. However, doctors can avoid this problem by artificially maintaining the life of these infants and remove the organs while the infant’s heart and lungs are still functioning. Further, some have expressed fear that anencephalic infants will intentionally be created as researchers have been able to delete the mammalian gene for brain development leading to anencephalic laboratory animals.

The visceral image of removing organs from a baby whose heart is still beating would obviously be disturbing to many. Some consider this practice tantamount to killing a living child for the benefit of another. In addition, the possibility of opening the door to create anencephalic babies to harvest their organs is extremely frightening. This article acknowledges that there are valid legal and ethical concerns with using anencephalic infants as organ donors, but proposes that these concerns can be overcome in the following ways: a proper biological understanding of this condition; a definition of death that includes absence of higher brain functioning and not simply absence of brain functioning; stiff criminal penalties for anyone who intentionally creates anencephalics; and strict liability for any medical personnel that uses organs from intentionally created anencephalics.